Agenda item

To determine the application.

Tom Donnelly presented the report to members.

Members received a presentation, in accordance with the public participation procedure, from Jonathan Kirby, on behalf of Nigel Davies, an objector. Mr Kirby stated that is a training flying instructor and experienced pilot at March Airfield speaking on behalf of Nigel Davies, the owner and chief flying instructor. He stated that they have been put in a situation to lodge an objection to safeguard the future of the business regarding the proposal of buildings and structures at the end of their main runway, with March Airfield being predominantly a paramotor training school and all of its students have a set syllabus which means they have to undertake a minimum of 25 flights to be signed off as a paramotor pilot, however, some pilots take longer than this.

Mr Kirby advised that flying tasks including take off, climb outs, circuit training, emergency engines offs and in-flight restarts, emergency spot landings, are all within a 25 metre circle from various heights and all this occurs within 1 mile of the airfield. He continued that once these are completed there are two cross country navigation flights to complete and each flight has a landing which will include losing height on the base leg part of the circuit over the proposed development by means of figure of eight turns until a height is achieved that the pilots can turn in on their final approach to land at the airfield, which is where the concerns and hazards lie with regards to thermic turbulence at low level as they lose height for approach to land.

Mr Kirby stated that in April 2021 they were advised to send to the LPA and FDC a safeguarding drawing for the airfield as requested by the Airfield Advisory Team, a safety division of the Civil Aviation Authority (CAA), where the previous owner of this pasture applied for planning permission for a development also at the end of their runway. He stated that this safeguarding allows them to stay legal within the UK air law of the 500-foot rule which states aircraft must be 500 feet away from persons, vessels, vehicles and structures apart from taking off and landing.

Mr Kirby expressed the view that the proposal of the structures and buildings would fall within their agreed no-fly zones and safeguarded 500 feet area around the airfield, which means they would be in breach of the 500-foot rule when in low level circuit flying when training. He understands that safeguarding in place with the LPA and FDC would safeguard their business from further proposals to Planning keeping their aviation training school legal and safe due to the 500-foot rule of the CAA.

Mr Kirby stated as an airfield they are not just able to up sticks and move to any location and the current location has had full planning permission for the last 12 years. He made the point in principle they have no objection to the application, however, they do object to the location of the proposal as it is a major concern to both them and their students and clients safety as the building’s structures would be a major hazard and breaches the 500-foot UK air law rule as described in the letter received from the CAA airfield advisory team.

Mr Kirby expressed the view that if this application is allowed to proceed in its current location then the LPA and FDC are not protecting and safeguarding their already established successful local business that has continued to grow over the last 16 years, even through COVID, with full planning permission which draws in clientele from all over the UK and in turn brings in regular economy not only to them but also to the local Fenland area businesses. He expressed the opinion that these structures are all hazards and risks to both airmen and aircraft and would become a hazardous obstruction, therefore, could become a criminal matter as defined by the CAA in article 240.

Mr Kirby expressed the view that if approved it would compromise their ability to safely operate the airfield and safety is paramount to both students and existing pilots. He asked members to keep them safe and refuse the application.

Members asked questions of Mr Kirby and Mr Davies as follows:

·       Councillor Marks agreed that safety is paramount, however, this business was supported and this proposal is for another business that is looking to come into the area and asked what is stopping them moving over to the left when undertaking circuits, why do circuits need to be undertaken on this side when there is the same area on the left hand side with no buildings? Mr Kirby responded that it all concerns wind as wind direction is crucial to a flight, with the take off into wind and the landing into wind. He stated that the predominant wind direction in the UK is coming from the west to east so more often than not they are coming back over this field and landing on the airfield so moving it further up, bearing in mind that they have a lot of trainee pilots who do not quite have the same levels of accuracy, to land halfway up the field or further up the field leaves a lot of chance to the safety of the pilots. Mr Kirby stated that he personally believes that this would also make half of the airfield possibly unusable which he would question as being fair to the current owner.

·       Councillor Marks expressed the view that it is a little strange that there is another building that is their own building on the corner virtually in line with the other building that is proposed. He asked if the CAA have actually provided a proper report saying that this proposal is going to cause problems? Mr Kirby responded in relation to the buildings that are currently on the airfield, which is a hanger and a residential house, that is classified as on the airfield so they are effectively in control of that and know who is on those airfields. He stated that the CAA role in the 500-foot rule applies to outside the airfield and it is not known what is happening outside of their grounds, they can guarantee the safety within their grounds but further afield it is different. Mr Davies stated that on the documents received there is a formal letter from the CAA that specifically refers to the buildings letting off thermic energy. Councillor Marks clarified that it is a letter and not a report. Mr Davies responded that whether it is a letter or a report it is stipulating the fact of what the buildings would cause if it was warm weather and it would let off thermic activity which would be dangerous.

·       Councillor Marks asked if the CAA had been out on site and looked at this? Mr Davies responded that the CAA have been out many times for a previous owner with complaints. Councillor Marks reiterated have the CAA been out to look at this application and what these problems would cause the business? Mr Davies responded that the CAA did not come out on this specific application because the person that was dealing with it was the person that dealt with the last application, and they were fully aware of their area and location.

·       Councillor Connor reiterated that it was a letter from the CAA? Mr Davies questioned the significance between a letter and a report. The Legal Officer stated that members are in danger of going down a dangerous road, the CAA is a statutory consultee on this type of application, they are the experts on these matters, and they have given their advice on the matters in which they have the expertise in a formal consultation response. She continued that members need to be careful not to raise somewhat immaterial considerations around the precise format of their consultation response, they are a statutory consultee and they have responded to the consultation. The Legal Officer made the point that, as with all statutory consultees and all experts who are consulted through the planning regime, it is important to bear in mind that that the committee is not compelled to follow their advice, it remains the committee’s decision to make but where expert advice is received from the appropriate statutory authority who have expertise in these matters then the committee must have cogent and compelling reasons for departing from their advice with the specific elements for disagreeing with it. She continued that it needs to be borne in mind that the CAA have advised that they consider there are significant safety risks both to future residents of the dwelling and users of the airfield and that is a significant consideration that committee should afford considerable weight to.

·       Councillor Imafidon referred to mention of their own structures on the airfield and this proposal they do not have control over, asking what the difference would be if they owned the proposal site? Mr Davies responded that they control all their own aircraft movements so where people take off and land is his discretion but the problem they have with the field opposite is because they predominantly take off into a westerly wind they have to come in and do figures of eights to lose height over that property, which they do not do over or above their own buildings.

·       Councillor Imafidon reiterated that his question was that if they were the owners of this proposed building would there be a problem? Mr Kirby responded this is regarding the 500-foot rule that is in existence that as pilots they have to keep away from structures, vehicles and people, which is a general CAA rule for safety. He continued that it is known within their own airfield where their own movements are and if they owned the land on the proposal they could most likely control who is there and know that when pilots are descending and coming over quite low who is there and who is not but this proposal is by somebody else and, therefore, that is somebody else’s property and movements cannot be controlled. Mr Davies added that they circuit around the airfield, not over it, which is within their 500-foot zoned area around their airfield and that was one of things in their application for planning permission 12 years ago that they were 500 feet away from any buildings or structures, with this proposal contravening this.

·       Councillor Imafidon expressed the view that his question has not been answered, they are talking about controlling who is in the structure or building. His question was, from the earlier presentation, one of the concerns was that they do not own the building and do not have control over the building now it is being talked about that it is not known who is in the building as it was said if it was their building they would know who was in it at any given time. He asked if this structure was theirs, they would not have any problems with this proposal? Mr Davies responded that the 500-foot rule states persons, vehicles, vessels and structures and he does not know who is in that building at any time.

·       Councillor Marks made the point that if there is a tractor in the field next door they would have no control over that, if there is a car driving down the road there is no control over that, no control of lorries going to the chicken farm but they are trying to control a property across the field and put forward an argument that there needs to be control over a house and a building. Mr Davies responded that if there is a vehicle coming down road he would make that pilot aware and they would go around again, with the chicken farm being 900 metres away from them so he does not see the relevance of this. Councillor Marks reiterated that there are vehicles going up and down the road, with Mr Davies having no control over the vehicles that travel up and down that road, there are no traffic lights controlling take off and landings, but he is talking about needing to control the next field when they have no control over the whole area around, be it a tractor in a field or a lorry travelling to the chicken farm and asked if this was correct, yes or no? Mr Davies responded 100%, apart from the fact that he is missing the point that the 500-foot rule excludes take offs and landings so any time they would be 500-foot on the floor would be for take off and landing, which is exempt, outside of this they would be higher than 500 foot.

Members received a presentation, in accordance with the public participation procedure, from Mark Venni, the applicant, and Matthew Hall, the agent. Mr Venni stated that he has lived in March all his life and has a small utility business with 12 March people working for him and he is losing his current yard because it is being developed into something else. He made the point that he has looked for other yards and felt this site was a perfect place, having spoken to Mr Davies before he submitted the application and he was happy with where it was located but Mr Davies has since changed his mind.

Mr Hall expressed the view that when looking at a lot of these objections, unless he has misread them, they are from Sunderland, Sheffield, Cambridge, Hemel Hempstead and Bedford. He made the point that Mr Venni employs 12 people who all live in March but there is not going to be 12 vans coming to and from this site each day, a lot of the people keep their vans at home, and they occasionally come back to the yard.

Mr Hall stated that it is not a new business, it is established and they have submitted accounts to verify this. He made the point that they have submitted a Flood Risk Assessment, which has been approved by the Environment Agency, and it is not a residential house, it is an occupational dwelling.

Mr Hall expressed the view that if there is an issue with the fencing, they are happy to receive a condition. He referred to reason for refusal 5 regarding self-build, Mr Venni owns the land, he will build this house and has been designing this house with people in his office and he knows that he has to live in this house if approved so is happy to pay the fee and sign a legal agreement but could not do it at the time as when the application was submitted last year these agreements did not exist.

Mr Hall referred to a slide on the presentation screen, which shows the area in line with the objector’s own property and Mr Venni did speak to Mr Davies before the application was submitted as they had the shed, which is lower than objector’s own shed and 130 metres away from the runway, in line with his grass runway and it was moved and the drawing in the report shows it was revised this twice. He referred to another slide which shows that the buildings are not in line with Mr Davies’ runway and are 140 metres away and further slides showing how people could land if this proposal existed.

Mr Hall made the point, referring to a slide taken from public access in 2012 submitted with the application that they had no involvement with, the green area is where Mr Davies had shaded on his own slide but in this green area since his application was passed there has been a dwelling approved and built out, two or three sheds built higher than they are proposing and various approvals have been obtained for Mr Davies of pods and shepherd’s huts, all in this green area right next to his runway, which are far closer than this proposal. He added that the diagram does say looking at the red circles 500 feet minimum height, not distance but height and there is a no-fly zone around the chicken farm, which is not affected and another no fly-zone around March due to the prison, and on this map he has circled Mr Davies’s dwelling which would be over a third or half of his runway and Mr Venni’s house has a yellow dot to the right of this is in line with Mr Davies’ own property.

Mr Hall made the point that they did look at the information, moved it away and did speak to Mr Davies.

Members asked questions of Mr Venni and Mr Hall as follows:

·       Councillor Mrs French asked Mr Venni where he currently has his business? Mr Venni responded that it is down Elm Road, opposite the prison road.

·       Councillor Marks expressed the view that it seems to come back to CAA restrictions and asked, before the application was submitted, did they make any reference to the CAA and has there been any communication with them? Mr Hall responded before they submitted the application no, the CAA were consulted as the officer outlines in 5.4 of the report and when you read what it says in the report there is nowhere in this does it say that they object to it. He made the point that they did speak to Mr Davies and the map that he put on screen earlier they have never seen and it says 500 feet height not horizontal distance, but the house and garage are over 500 feet away anyway. Mr Hall added that they undertook research beforehand and spoke to Mr Davies then had the written representation from the CAA so when that was received, he e-mailed them, copying in the planning officer, to say this is the proposal and the drawing, with the continual line of the airfield not being interfered with.

·       Councillor Connor asked for this e-mail to be distributed to officers and members and adjourned the meeting for 5 minutes. Mr Hall stated that with the response from the CAA they did copy in Mr Donnelly on 17 March so he has seen it, although it is not on public access.

·       Following the adjournment, Councillor Marks referred to the last paragraph of the e-mail where it says ‘I’m hopeful that through such communications, any concerns can be allayed either by the developer or a richer understanding of each other’s own interests by alterations or conditions’ and asked did the alterations that they made by moving the property across take place after this or with consultation with the objector? Mr Venni responded that he spoke to Mr Davies and when I said we would keep clear of his air strip he was happy, with Mr Hall coming up with the proposal and suddenly he changed his mind. Mr Hall added that he does not see anywhere in this correspondence where they say that they object, they looked at the map from 2012, have kept out of the area and spoke to Mr Davies. He stated that ultimately, if members support the application, they would be happy to enter further discussions if this is still a gray area but nowhere else does it say they object and reiterated that on the map it says 500 feet high and not distance even though the house and garage are greater than 500 feet.

·       Councillor Mrs French asked when the land was purchased and did they enter into pre-app advice? Mr Venni responded that the land was purchased about 18 months ago and they did not undertake a pre-app as he was not aware of the rules. Councillor Mrs French asked if the agent did not undertake a pre-app either? Mr Hall responded that he did not.

·       Councillor Benney referred to CAA letter, which says ‘my letter doesn’t intend to present such concerns as assessments or conclusions’ so it presents nothing in the letter that says to him that there is a conclusion from this and then goes on to say that ‘having been contacted directly by the landowner pertaining to the proposed scheme, I’m encouraged to learn that dialogue exists between them and the operators of the airfield. I’m hopeful that through such communication any concerns can be allayed either by developing a richer understanding of each other’s interests or by alterations and conditions’, which, in his view, does not say anything and contains no substance. He feels that there is no conclusion from either side as to which is right and which is wrong, with two parties with a difference of opinions and asked Mr Hall what does this letter say of any substance relating to technical information that members need to assist them? Mr Hall responded that whilst he agrees, the officer’s report at 5.4 relating to CAA does not say anywhere that they object or that they are happy or give it a yes or a no, and if it had said round here measured from the perimeter of the runway there is 500 feet measured horizontally then that would be fine but it does not say this.

·       Councillor Imafidon expressed the opinion that the letter does not give any definitive response from the CAA and the fact that they have not spoken in favour of the applicant or the objector he feels the committee needs a more definite answer from the CAA. Mr Hall responded that Councillor Imafidon has summed it up well, it does not give a yes or no, if members are happy with the proposal on all other aspects it could be deferred for advice on this aspect.

·       The Legal Officer referred to the previous two slides where there were some alternative landing and take off lines and questioned where these had come from, who were they prepared by and were they prepared in consultation with the airfield owner or CAA? Mr Venni responded that he produced these slides but he spoke to some paramotor pilots and they said they do go into and out of the wind but there are other options where you can land. He made the point that Mr Davies is building pods beside his runway and when he showed him the shed he said it was irrelevant his house being there.

Members asked questions of officers as follows:

·       Councillor Mrs French expressed the view that once again looking at the reasons for refusal at number 4 it says that insufficient information has been submitted to demonstrate proposed development and asked is it an incomplete application? David Rowen responded that whether members view it as an incomplete application, reason for refusal number 4 relates to the whole issue of aviation safety and whether members would deem the CAA comments as an objection or not because it does not include the word objection they clearly raise significant safety issues. He added that the operator of the airfield knows how his business operates and knows the conditions around that, raising those self same safety issues and the further bit of correspondence that Mr Hall has produced does not say a great deal other than it is hoped that concerns can be allayed so clearly those concerns have not been allayed as far as the operator of the airfield is concerned so questions whether it is an incomplete application or inappropriate one, which is one for members to decide on.

·       Councillor Marks expressed the view that this was not an answer to a question, Councillor Mrs French asked if this is an incomplete application, is there other stuff missing, it is not whether members rely on the CAA information but if officers say it is incomplete, what is missing from this application? Matthew Leigh responded that this incomplete application term is something that he has only experienced at Fenland, officers would say that if information is not with them it is a refusal but it is a member’s belief that whenever there is a lack of information it is an incomplete application but this is for members to decide and for officers if there is not enough information there it is a reason for refusal. He added that it is not a planning term but based on his experience of Fenland it is an incomplete application as there is not enough information in front of committee to confirm it is safe.

·       Councillor Marks questioned that it is not missing any information, such as biodiversity, it is purely missing or there is not a big enough explanation from the CAA in relation to safety as when he hears incomplete what is actually missing? David Rowen responded that Councillor Mrs French specifically mentioned reason for refusal 4 which is the one that relates to aviation and as set out in that reason for refusal there are comments from the CAA raising a safety issue and there is no evidence within the application to contradict that or to demonstrate that the development would be safe.

·       Councillor Marks referred to a farmer putting a shed up in that area and asked would he be able to do that without reference to this airfield? David Rowen responded that one of the restrictions on agricultural permitted development is proximity to an airfield.

·       Councillor Murphy asked if the airfield was not there would planning permission be given for this proposal to be built in the open countryside? David Rowen responded that they would not which is why there are three other reasons for refusal.

·       Councillor Imafidon questioned whether officers were aware of the original agreement between the applicant and airfield owner. Officers indicated that they were not.

Members made comments, asked questions and received responses as follows:

·       Councillor Marks expressed the view that the application should be deferred to obtain further information from both the objector and the applicant as the CAA are seeming to suggest they should work together and if they come back with a report saying yes or no that will asset with a decision.

·       Councillor Benney made the point this is a business, and members always try to support businesses, but this is a field currently and as much as members want to support business, one business cannot be supported at the detriment of another. He continued that this field could be sold, and the applicant could find another field somewhere else and come back with an application that he would fully support. Councillor Benney stated that a road cannot be put on a bend because of safety but here there is an airfield which the CAA, who are in charge of all air flights that happen in the UK and associated safety regulations, providing a response which proves nothing either way. He made the point that committee see things where people turn up and there is a big personal clash going on getting embroiled in technical issues but is not sure where this one sits. Councillor Benney stated that he would like to support the business with having a house there with a yard, but at the moment it is a field and there is an existing airfield business, with which way the wind blows depending upon which way the airfield runs and if it means that 20 days a year the wind comes from the east and he cannot operate his business members should not be doing something that is detrimental to one business at the expense of another. He expressed the view that there is not enough information or real technical information from the CAA but does feels that officers have the recommendation correct on this as safety cannot be put at risk, although risks can be mitigated, in his view, there is not a technical solution to an airfield.

·       Councillor Mrs French stated that she does have concerns regarding this application, she thinks herself and Councillor Murphy were the only councillors that were on the Council when the London Parachute Company got permission about 15 years ago and the business next door put telegraph poles up and endangered it. She reiterated that she does have concerns about the safety, she knows they fly west to east, and as Councillor Benney said you cannot support one business at the detriment of another.

·       Councillor Marks expressed the opinion that something is being discussed that professionals exist for and they should be called in, suggesting it being deferred for the CAA to provide a report as the committee would be unable to go against it, which would then not back one business against another and be fair in planning terms, with the Council being open for business and should support all businesses, acknowledging not to the detriment of one or other and safety being paramount. He does not feel that there is not enough information, members have heard from two different sides but a categoric report is required from the CAA to enable a decision to be made and he would prefer to defer it currently.

·       Councillor Connor agreed, the applicant says the airfield operator, Mr Davies, was OK at the start then he says he was not so who knows what the real answer is and it is all about the CAA, if they say it is safe or there is mitigation that can be undertaken there would be an answer, which members have not got at the moment.

·       Councillor Benney asked if it is deferred what can it be deferred on as there needs to be a purpose to a deferment and at the moment he cannot see this, questioning whether the CAA will assist with a report? Matthew Leigh responded that the CAA have been consulted and come back with their response and he does not believe that anything more would be obtained from them, they are not going to produce a bespoke report, it is no different to when Highways or the Environment Agency are consulted as there is no report but a consultation response. The Legal Officer stated that it is right to go back to the CAA as the statutory consultee in the first instance but if they cannot provide what the committee needs to make a decision she would suggest that the onus is on the applicant to demonstrate that their proposal is safe and there will be independent experts, as used in ecology, flood risk, etc., and it would be for the applicant to procure a report from a suitably accredited expert. She clarified that, if committee defer for further information, in the first instance she would suggest officers approach the CAA for a follow up consultation response and failing that it should be a request for the applicant to provide suitable independent evidence to bring back to the committee to consider.

·       Councillor Murphy suggested refusal as CAA have had plenty of time in their response to outline their position and they are just ‘sitting on the fence’.

·       Councillor Marks expressed the opinion that it would be not right at this point to refuse it but defer it as members are trying to support businesses in Fenland, not one to the detriment of another, it would still have to come back and be debated about the actual property but there is not enough information and to be fair to all parties it needs deferring for that information and if it cannot be obtained then it is refused.

Proposed by Councillor Murphy, seconded by Councillor Benney to refuse the application as per the officer’s recommendation, which was not supported on a vote by members.

Proposed by Councillor Marks, seconded by Councillor Connor and agreed that the application be DEFERRED for further information regarding aviation safety.

(Councillor Benney declared that the agent has undertaken work for Chatteris Town Council and himself personally, but he is not pre-determined and will consider the application with an open mind)

(Councillor Imafidon declared, that the agent is undertaking work for him, but he is not pre-determined and will consider the application with an open mind)

(Councillor Murphy declared that he knows the agent, but he is not pre-determined and will consider the application with an open mind)

(Councillor Mrs French declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that she is a member of March Town Council but takes no part in planning)